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  • Supreme Court Report

  •   Is HIV Covered by Disability Act?

    By Joan Biskupic
    Washington Post Staff Writer
    Sunday, March 29, 1998; Page A03

    Complaints about doctors who shunned patients infected with the AIDS virus had been rumbling across the country for years. But it took Sidney Abbott's visit to the small Bangor, Maine, office of dentist Randon Bragdon in September 1994 to trigger a case that would reach the Supreme Court.

    Now, the justices will decide for the first time whether people who have HIV are covered by the Americans with Disabilities Act. The law prohibits discrimination on the basis of "disability" in dentist offices, hospitals and other places that serve the public.

    The case, which will be argued before the high court on Monday, will determine the access an estimated 1 million people who have tested positive for the AIDS virus should have to routine medical treatment nationwide. It also will resolve doctors' and dentists' liability under the 1990 law that imposes fines on places that turn away the disabled. Bragdon refused to fill Abbott's cavity in his office because she carried the human immunodeficiency virus (HIV).

    While this is the first AIDS-related dispute to be heard by the justices, a ruling in the case would set the standard for other diseases and handicaps. As the first major test of the 1990 disabilities act, it is being closely watched by the larger medical community, businesses bound by the law and people with other infectious diseases.

    The question before the court focuses on people who have asymptomatic HIV, that is, who have not developed any of the conditions or symptoms associated with AIDS.

    "Individuals with HIV have faced discrimination in all walks of life, but particularly with respect to access to health and dental care," Abbott's lawyers have told the justices in their written brief. Bennett H. Klein, who will argue Abbott's case Monday, said that unless people with HIV are covered by the disabilities law, doctors would be able to rely on their own fears and conjecture to avoid patients, and hospitals could refuse to draw blood or insert an intravenous line in anyone with HIV.

    Bragdon countered that he acted in good faith and "a reasonable dentist in his shoes" could have found the risk of treating Abbott "personally significant."

    Bragdon's lawyer, John W. McCarthy, stressed that the dentist did not leave Abbott without an alternative. After he performed a routine exam on Abbott and found the cavity on a back lower tooth, Bragdon said he would fill her cavity in a hospital where greater precaution could be taken. Abbott had disclosed her HIV on a registration form.

    The dentist and patient did not meet by accident. Abbott, 37, is part of a nationwide movement challenging health care providers who refuse to offer AIDS patients routine treatment. Bragdon, 52, is a veteran dentist who had attended numerous conferences on HIV infection and had been outspoken in his view that he had to take special measures when dealing with HIV patients. Conflicts like theirs have been playing out in lower federal courts and state human rights commissions across the country. The courts have been divided over whether the HIV infection is a disability.

    The Americans with Disabilities Act (ADA) covers people who have "a physical or mental impairment that substantially limits one or more major life activities."

    Abbott contends she is disabled in the reproductive area. She said she is inhibited in her ability to have children because of the risk of transmitting HIV to her child.

    "HIV always substantially limits the major life activities of procreation, parenting, and sexual relations," her lawyers said. "As a fatal, infectious disease, HIV changes substantially the risks and choices associated with reproduction for all who are infected. Everyone who is infected bears the risk of infecting any child he or she may conceive, as well as his or her sexual partner."

    Attorney Klein is with the Gay & Lesbian Advocates & Defenders. Other gay rights groups endorse the theory that reproduction is a major life activity. Klein and the groups also assert, however, that anyone with HIV should automatically be considered disabled.

    "There is no dispute that HIV is a physical impairment," he said in his brief. "The statutory term 'physical impairment' refers to a physiological condition which worsens or diminishes one's physiological state."

    The Clinton administration, siding with Abbott, also argues that reproduction is a "major life activity" under the ADA. "The infection limits the conditions and manner under which (a woman) can become pregnant, because it makes unprotected intimate sexual relations life-threatening for her partner," Solicitor General Seth P. Waxman wrote. "The infection also would threaten the life of a child, because it can be passed from mother to child before or during birth and during breast feeding."

    Bragdon argues that reproduction is not an activity considered "major" by Congress, as are such things as seeing, hearing, speaking, breathing and working.

    People with HIV who have no symptoms, as Abbott did not in 1994, "are not in any ordinary sense substantially limited in the ability to care for themselves, perform manual tasks," said Bragdon's lawyer, McCarthy. He added that Abbott's argument "confuses moral decision-making for physical disability."

    "Asymptomatic HIV-infected women of child-bearing age make different culturally and morally informed decisions concerning sex and pregnancy, but that does not make some disabled, and others not," McCarthy said.

    He said that even if Abbott were "disabled," under the law, Bragdon had no obligation to fill her cavity in his office because the procedure would have threatened his safety. The disabilities law says that if a person poses a significant risk to the health or safety of others, he or she can be denied treatment or services.

    "You shouldn't impose civil rights liability on someone if he is acting in good faith or if he is in the range of professional judgment on this issue," McCarthy said.

    The two sides differ on the threat the AIDS virus presents. The Justice Department said an HIV-positive patient is not a direct threat to dentists doing routine work such as filling a cavity. It notes that the Centers for Disease Control and Prevention said that as long as dental workers take universal precautions such as wearing gloves and masks and sterilizing equipment, it is safe to perform routine dental procedures on HIV-positive patients.

    Bragdon tried to get Abbott's discrimination case dismissed, but lower courts ruled the lawsuit could proceed. The 1st U.S. Circuit Court of Appeals found reproduction a major life activity and said Bragdon failed to demonstrate that a reasonable threat of contracting the AIDS virus existed.

    In addition to deciding whether asymptomatic HIV is a disability, the Supreme Court in Bragdon v. Abbott will look at whether trial courts should defer to the position of public health authorities such as the CDC when deciding whether a fear of a contagious disease can be justified.

    Abbott noted in her filing to the court that there has never been a documented case of HIV transmission from infected patient to dental health care worker.

    In a similar vein, the risk of transfer from infected doctor to patient is reportedly slight. Several years ago, there was widespread media attention on a Florida dentist who was believed to have infected patients before he died with AIDS. Several of his patients reportedly died of AIDS complications. The first, Kimberly Bergalis, who became an outspoken advocate for AIDS testing of medical personnel, died in 1991 at age 23.

    The American Medical Association has told the court that while "the plain medical fact is that HIV disease, even in its early stages, has profound effects on a person's health," there is "no significant risk" that it can be transferred from patient to doctor or dentist. Meanwhile, the American Dental Association, a dentists' trade group, is siding with Abbott, saying that people infected with HIV should not be considered disabled.

    © Copyright 1998 The Washington Post Company

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